On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 03-01-0052.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and R. B. Coleman.
Defendant, John Valanos, appeals from a final order entered on April 16, 2007 by the Law Division, denying his petition for post-conviction relief (PCR). Defendant argues that he received ineffective assistance by trial counsel and by appellate counsel. The PCR judge rejected those arguments, making the following observations and findings:
The question here is whether there was an ineffective assistance of counsel claim that has any merit, both trial counsel and appellate counsel. In reviewing the transcript that was submitted as part of the material, which has been referred to at length here, [trial counsel] goes into great detail of the meetings that took place between himself and the defendant with and without the interpreter. That he went over thoroughly with him his potential defense. [Trial counsel] at page four says "I have had lengthy, lengthy, conversations with my client regarding the termination of consent and how the law applies to that. Given the level of intoxication that resulted that particular evening the young women [sic] eventually passed out or fainted. At that point, I have explained in great detail to Mr. Valanos how any type of implied consent that may or may not have existed, should a jury even believe it, would have terminated upon that event." And he goes on beyond that.
I'm not going to reread what's been read and reread here in this proceeding. But, my reading of the 24-page transcript of the plea which I did review a tape before I decided his motion regarding the trial level's plea at the time of resentencing, my review on both occasions is that this plea was given knowingly, intelligently and voluntarily with full assistance of competent counsel who had thoroughly reviewed the matter not only himself but also with the defendant on more than one occasion.
[T]he issue with regard to ineffective assistance of counsel is obviously governed by Strickland Fritz test that requires that counsel make errors so serious that he was not functioning as counsel. In other words, he is a clearly deficient performance [sic]. And, secondly that the deficient performance must have been so serious as to deprive the defendant of a fair trial or fair representation. I don't find that to be the case here either at the trial level or the appellate level. I find that the appropriate arguments were raised. With regard to the plea itself I find that the matter was thoroughly reviewed by counsel with Mr. Valanos, he was questioned appropriately, he answered the questions appropriately, and that [the] plea was appropriately taken. I don't find that there was any improper advice or lack of advice given. With regard to the counsel I find the same thing applies.
For substantially the reasons expressed by Judge Walter L. Marshall in his oral opinion from the bench, we affirm the denial of defendant's petition. Notwithstanding that summary basis for our disposition, we elaborate further.
Defendant raises the following points of argument for our consideration on appeal:
POINT I: NO OTHER CONCLUSION CAN BE REACHED BUT THAT COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
A: Trial counsel was ineffective in allowing defendant to enter a plea of guilty where defendant failed to provide a factual basis supporting the offense charged.
b. Defendant was prejudiced by trial counsel's failure to prevent a guilty plea with a contemporaneous affirmative defense.
c. Defendant was prejudiced by the ineffective assistance rendered by appellate counsel.
POINT II: NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECTIVE OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
We reject defendant's arguments.
The matter arises out of events that occurred on August 16, 2002. That evening, the manager of Adelphia's Restaurant in Deptford, New Jersey, asked defendant to drive A.B. home because A.B. had become extremely drunk at the restaurant's bar. While defendant was driving her home, A.B. fell asleep and was unable to direct him to her apartment. During the hours that followed, A.B. experienced intermittent periods of consciousness and unconsciousness. Defendant admitted, both in statements to the police and during his plea hearing, that he had sexual contact with A.B. while she was asleep.
The Gloucester County Grand Jury returned Indictment No. 03-01-0052 charging defendant in five counts with three first-degree offenses and two second-degree offenses: first-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b) (count one); first-degree attempted aggravated sexual assault, contrary to N.J.S.A. 2C:5-1 and 2C:14-2(a) (count two); first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a) (count three); second-degree attempted sexual assault, contrary to N.J.S.A. 2C:5-1 and 2C:14-2(c) (count four); and second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c) (count five).
On April 21, 2003, defendant agreed to enter a plea of guilty to count five of the indictment. In exchange, the State agreed to dismiss the remaining four counts and to recommend a seven-year prison sentence subject to the eighty-five percent parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea hearing, defendant responded to the questions of his attorney as follows:
Q: After she passed out[,] [d]id you drive her around for a time period?
Q: And she was still at this point, unconscious?
Q: And during this time period did you have opportunity to touch her?
A: Yes. I tried to wake her up.
Q: And did you touch her? What did you ...